Artful Living Home Service Subscribed Artwork Summary Table
This Artful Living HOME Service Agreement (this "Agreement"") is entered into by and between Waterfall Gallery ("Gallery" or "Waterfall") and Subscriber set forth on the cover page to this Agreement (Waterfall Gallery and Subscriber are together referred to as the "Parties") on the Effective Date set forth on the cover page to this Agreement. In referring to the Parties individually, this Agreement may use "You" or "Your" to refer to Subscriber, and may use "We," "Our," or "Us" to refer to Waterfall and its successors and assigns. For the avoidance of doubt, this Agreement shall not be deemed to be in force and effect unless and until executed by both Gallery and Subscriber.
The Parties hereby agree as follows:
a. "Account Manager" means a Gallery account manager assigned to You at any point after You place an order for Subscribed Artwork.
b. "Purchase Price" means the price (exclusive of any applicable sales or use taxes) at which Subscribed Artwork may be purchased from the Waterfall, and is the amount equal to Listed Artwork Price, minus (ii) the total amount of Subscribed Artwork Payments made by Subscriber with respect to such Subscribed Artwork item. For clarity, the Purchase Price shall not include any shipping, installation or additional art curation service fees, which shall be paid separately by Subscriber to Waterfall.
c. "Subscribed Artwork" means the artwork You are leasing pursuant to this Art Leasing Subscription Agreement Subscribed Artwork Summary Table.
d. "Subscribed Artwork Payments" means the payments You will make toward leasing the Subscribed Artwork, excluding applicable sales and use taxes.
e. "Total Subscription Payments" means the amount that You will pay, including Subscribed Artwork Payments, and any applicable sales and use taxes. The Total Subscription Payments does not include additional fees assessed such as those for late payments, pre-possession cancellation or early termination, which are separately disclosed in this Agreement.
a. subject to Section b and/or Section 5.c, as applicable, You may do any one of the following: (i) purchase all Your Subscribed Artwork for a price equal to the sum of the Purchase Price for each Subscribed Artwork item minus the Subscribed Artwork Payments made for the applicable Subscribed Artwork, or (ii) return all Your Subscribed Artworks and, subject to the last two sentences of Section 11.b, pay the Pick-Up Fee or (iii) purchase one or more items (but not all) of Your Subscribed Artworks for a price equal to the sum of the Purchase Price for each item of purchased Subscribed Artwork item and return the remaining items of Subscribed Artwork in each case minus the Subscribed Artwork Payments made for the applicable Artwork;
b. to be eligible to purchase any or all of Your Subscribed Artwork pursuant to this Section 5, You must (i) notify Us by e-mail to Your Account Manager or firstname.lastname@example.org least fifteen (15) days prior to the expiration of the Initial Subscription Term or then-current Renewal Term, as applicable, of your intention to purchase the Subscribed Artwork ("Notice of Intent to Purchase") and (ii) have paid all Total Subscription Payment up through the date on which you send such Notice of Intent to Purchase.
c. To arrange for the return of any or all of Your Subscribed Artwork pursuant to this Section 5, You must notify Us by e-mail at email@example.com by reaching out to Your Account Manager, at least fifteen (15) days prior to the expiration of the Initial Subscription Term or then-current Renewal Term, as applicable, of Your desire to return Subscribed Artwork and Your desired pick-up date. The desired pick-up date shall be no later than seven (7) days after the end of the Initial Subscription Term or then-current Renewal Term, as applicable. If You fail to arrange for the pick-up of the Subscribed Artwork on or before seven (7) days following the end of the Initial Subscription Term or then-current Renewal Term, as applicable, Gallery will deduct an applicable monthly rate (5% of the Subscribed Artwork Price) out of the paid deposit.
d. if You chose to purchase or return any Subscribed Artwork, Gallery will update Your Cart to reflect such purchases and returns (subject to any additional updates required pursuant to Section 5.f below) and send the updated Cart to You for Your execution. Once You execute the updated Cart and send it to Your Account Manager by e-mail to firstname.lastname@example.org, it will be deemed part of this Agreement and will amend and replace the then-applicable Cart.
6. Payment Terms.
a. Pre-Possession Cancellation and Rescheduled First Delivery Charges. Your first payment, which You paid on or prior to the Effective Date, is refundable if You cancel this Subscription 24 hours prior to taking possession of the Subscribed Artwork on Your scheduled Delivery Date, less a flat fee of $400 for cancellation on Your Schedule Delivery Date. If You reschedule the first delivery of Your Subscribed Artwork within two (2) business days before or on Your scheduled Delivery Date, You will be charged $200. To cancel this Subscription before you take possession of the Subscribed Artwork, You must notify Us by e-mail at email@example.com.
b. Payment Dates. The Total Subscription Payment will be charged upon the execution of this Agreement or by agreeing the Terms and Conditions before check out on the website.
c. Payments. Your payment will be the total of Your first Subscribed Artwork Payment, plus any refundable security deposit required (if applicable), plus any applicable sales and use taxes. You should read this Agreement for an explanation of any applicable additional The amount You will have paid by the end of the Complete Subscription Term will be dependent on the length of such Complete Subscription Term and the Subscribed Artwork included in the Subscription during such Complete Subscription Term.
You agree that if any information on Your Billing Account changes (such as a change in billing address or Payment Method, including card number or expiration date), You will promptly update all information to keep Your Billing Account current, complete and accurate. You must promptly notify Gallery if Your Payment Method is cancelled or if You become aware of a potential breach of security that may affect your Billing Account or payment. Such information can be changed through Your Gallery online account or by calling Gallery's general line at 212-988-0472.
a. Acceptance of Delivery. You, or an adult (at least 18 years of age) authorized in writing to act on Your behalf, must be present to sign for and accept the delivery of the Subscribed Artwork and the condition of such Subscribed Artwork once it is assembled (if applicable) and placed in Your residence. This signature confirms that You have received Your Subscribed Artwork delivery from Gallery and have inspected and acknowledged such Subscribed Artwork is in good condition, and that no damage to Your home was incurred during the delivery. You or Your authorized representative signing for delivery of the Subscribed Artwork must identify, and notify Us in writing on the applicable delivery date of, any damage incurred during the delivery. You acknowledge and agree that under no circumstances will Gallery have any liability for any damage sustained after delivery. Gallery inspects the Subscribed Artwork prior to delivery in a manner designed to ensure that it is free of material defects, damage and infestation. However, you must also inspect the Subscribed You further acknowledge and agree that only Waterfall approved contractors provided by Waterfall shall install the Subscribed Artwork as advised by You, the installation charges shall be flat fee of $60 per Subscribed Artwork, and that the installation site will be safe and ready for installation of Subscribed Artwork. You acknowledge and agree that You will inspect the Subscribed Artwork prior to taking possession and You will accept delivery of the Subscribed Artwork only after You determine that the Subscribed Artwork is in good condition and if the installation site (e.g., wall) is in good condition for installation of the Subscribed Artwork.
b. Delivery Fees, Restocking Fees and Pick-Up Fees. You will be charged a delivery fee and Pick-Up fees in connection with Your first delivery of Subscribed Artwork. Subject to the last two sentences of this Section b, You will be charged a delivery and pick-up fees ($300 for Manhattan, $400 for Queens, Brooklyn, and Bronx, and a separate fee for areas outside Manhattan, Queens, Brooklyn, and Bronx, New Jersey and Connecticut) to Your Payment Method for each delivery of Subscribed Artwork. If you do not accept delivery of any one or more items of Subscribed Artwork on the applicable scheduled delivery date, Gallery will charge You the Gallery’s restocking fees. Subject to the following two sentences, You will be assessed the Pick-Up Fee to pick-up each of the Subscribed Artwork at the end of Your Complete Subscription Term, as well as in connection with any returns of Subscribed Artwork pursuant to Section 5.b or Section 12, in each case in advance of the applicable pick-up date.
c. Failure to Arrange Pick-Up at End of Complete Subscription Term. If You fail to arrange for the pick-up of the Subscribed Artwork within seven (7) days following the end of the Complete Subscription Term, Gallery reserves the right to (i) deduct one month of an applicable Total Subscription Payments from the paid security deposit. If You fail to arrange for the pick-up of the Subscribed Artwork within thirty (30) days following the end of the Complete Subscription Term, Gallery reserves the right to charge You the Purchase Price of the Subscribed Artwork, in addition to all other payments and charges due under this Subscription.
a. Returning Subscribed Artwork. In order to request the return of any Subscribed Artwork to this Section 12, You must notify Gallery, by e-mail to firstname.lastname@example.org or by reaching out to your Account Manager, at least 15 days in advance of the desired pick-up date. Your notice must specify (i) the items of Subscribed Artwork You wish to return, (ii) Your desired pick-up date, and (iii) any restrictions with Your building that limit the days or times Gallery will be able to pick-up Your Subscribed Artwork items. Failure to provide notice in accordance with this Section 12.a may result in Your being charged the one (1) month's Subscribed Artwork Payment for the Subscribed Artwork You are seeking to return.
b. Adding or Exchanging Subscribed Artwork. In order to request the addition or exchange or any Subscribed Artwork pursuant to this Section 12, You must notify Gallery, by e-mail to email@example.com or by reaching out to Your Account Manager. Your notice must specify the items of Subscribed Artwork You desire to add as well as any restrictions with Your building that limit the days or times Gallery will be able to deliver Your Subscribed Artwork items. Such exchange shall be accepted on a case-by-case basis at Gallery’s sole discretion and subject to additional delivery and installation fee(s) as set forth by Gallery from time to time.
c. Updated Cart. If Gallery approves of Your requests or the Parties otherwise agree to any additions to, or early returns or exchanges of, the Subscribed Artwork, Gallery will update Your Cart to reflect such additions, returns and exchanges and send the updated Cart to For such updates to become effective, within ten (10) days, You must execute the updated Cart and sent it to Your Account Manager. Once Gallery receives Your executed updated Cart, it will be deemed part of this Agreement and will amend and replace the then-applicable Cart.
d. Changes to Payment Amounts. You acknowledge that any additions, returns, or exchanges of Subscribed Artwork may result in changes to Your Subscribed Artwork Payments, and/or Total Subscription Payments. In the event that the total Subscribed Artwork Payments for the Subscribed Artwork set forth on the updated Cart is less than the total Subscribed Artwork Payments last charged to You before Your Cart was amended, You will not be entitled to any refund for amounts already paid. If the total Subscribed Artwork Payments for the Subscribed Artwork set forth on the updated Cart is greater than the total Subscribed Artwork Payments last charged to You before Cart was amended, Gallery will charge to Your Payment Method an amount equal to the difference between such amounts, adjusted on a pro-rata basis.
a. By Subscriber. You may terminate this Lease at any time after the Delivery Date by e-mail to firstname.lastname@example.org reaching out to Your Account Manager.
i. During Any Subscription Term. If You terminate this Subscription within three (3) business days after the Delivery Date, You will be required to pay a 50% of the Total subscription Payments (which includes the Pick- Up Fee) ("Early Termination Fee").
b. By Waterfall. We may terminate this Subscription at any time and repossess the Subscribed Artwork without legal process, notice or demand if: (i) You violate any of the terms or conditions of this Subscription (which includes Your failure to pay in full any amounts due before the end of the applicable Grace Period) and fail to cure such violation within fifteen (15) days of receiving notice of the violation from Gallery; (ii) You become insolvent or make any assignment for the benefit of Your creditors; or (iii) any proceeding is instituted against You under bankruptcy or similar laws for the relief of debtors or a receiver is appointed for any of Your assets. Upon such termination, without notice or demand, You will become immediately liable to Gallery for the Early Termination Fee, in addition to any and all amounts due pursuant to Section 13.c. You will also be liable for all costs, including reasonable attorneys' fees to the extent permitted by law, which may be incurred by Gallery in enforcing this Subscription. The foregoing is in addition to, and not in lieu of, all other rights and remedies that may be available to Gallery.
c. Effect of Termination. Upon any termination, cancellation or expiration of the Subscription for any reason, You will (i) pay to Gallery any outstanding amounts due under this Agreement, if any (including, without limitation, any pre-possession cancellation fees and early termination fees), (ii) return all Subscribed Artwork then leased by You (except for any Subscribed Artwork You purchase pursuant to Section 5 or Section 10) within seven (7) days after the effective date of termination, cancellation or expiration, and (iii) subject to the last two sentences of Section d, pay the Pick-U Fee, except (x) in the event of termination within three (3) business days after the Delivery Date pursuant to Section 13.a.i, or (y) in the event all Subscribed Artwork is purchased by You in accordance with this Agreement, and (iii) if applicable, pay the Purchase Price with respect to any Subscribed Artwork you purchase. In the event You fail to return any Subscribed Artwork as required by clause (ii) above, Gallery reserves the right to charge Your Payment Method the Purchase Price for such Subscribed Artwork, in addition to all other amounts due under this Agreement.
d. Survival. Your obligations to Gallery under this Subscription (including pursuant to Section 13.c (Effect of Termination) and Section 17 (Indemnification)), as well as the provisions of Section 15 (Disclaimer of Warranties), Section 16 (Limitation of Liability), Section 26 (Dispute Resolution and Arbitration), Sections 18-25, the last sentence of Section 9, the last two sentences of Section b, and this Section 13.d will survive any termination or expiration of this Subscription.
14. Responsibility for the Subscribed Artwork.
a. Duty of Subscriber to Maintain the Subscribed Artwork. You are responsible for maintaining the Subscribed Artwork in good condition, subject to ordinary wear and You are responsible for any damage, loss, or destruction to the Subscribed Artwork while in Your possession and are required to provide prompt written notice if any Subscribed Artwork is lost, stolen, damaged, or otherwise permanently rendered unfit for use. Whether the Subscribed Artwork is damaged beyond normal wear and tear, lost, or destroyed will be determined in Gallery's sole and absolute discretion. In the event of any damage, loss, or destruction to the Subscribed Artwork, Gallery will charge You its cost to repair or replace the Subscribed Artwork, including materials, parts and labor, plus any applicable service fees, with a maximum charge of the item's Purchase Price. All of the Parties respective rights and obligations under this Agreement and applicable laws, rules and regulations that applied to the Subscribed Artwork will apply to any replacement merchandise. If You fail to return any Subscribed Artwork as required under the Subscription, You will pay Gallery the Purchase Price for such Subscribed Artwork, in addition to all other payments and fees due under this Subscription.
b. Subscriber Restrictions. You will not remove any item of Subscribed Artwork from the delivery address without Gallery's prior written approval. If You remove the Subscribed Artwork from the delivery address without prior written approval or use the Subscribed Artwork for commercial or staging purposes, You may subject Yourself to additional fees.
c. No Duty of Waterfall to Maintain the Subscribed Artwork. Except where required by law, Waterfall is not obligated to replace lost, stolen, or damaged Subscribed Artwork.
No Liability for any damage during installation.You hereby acknowledge and agree that You will bear sole responsibility to check and manage Your building, condominium, commercial properties’ management regulations and policies with regards to installation of any Subscribed Artwork(s). Waterfall is simple advising the aesthetic space staging services as a courtesy and is not responsible for any damages to Your wall or installation site unless such damage is solely due to recklessness or gross negligence by Waterfall’s installer. GALLERY'S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS SUBSCRIPTION (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE TOTAL SUBSCRIBED ARTWORK PAYMENTS PAID BY YOU TO GALLERY UNDER THIS SUBSCRIPTION IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM, AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT GALLERY'S SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS SUBSCRIPTION.
THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO THE LIABILITY OF GALLERY TO THE EXTENT CAUSED BY ITS GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD.
a. Applicable Arbitration. You agree that any dispute between You and Gallery arising out of or relating to the Subscribed Artwork or this Subscription will be resolved by BINDING ARBITRATION, RATHER THAN IN COURT, except that You and Gallery may assert claims in small claims court if the clams qualify, remain in such court, and advance solely on an individual, non-class basis.
b. Arbitration Rules and Forum. This Subscription evidences a transaction in interstate commerce, and the Federal Arbitration Act, 9 S.C. § 1, et seq., governs the interpretation and enforcement of this provision. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes where no disputed claim or counterclaim exceeds $250,000, not including interest or attorneys' fees, will be subject to JAMS' Streamlined Arbitration Rules and Procedures; all other claims will be subject to JAMS' Comprehensive Arbitration Rules and Procedures. Any required arbitration hearing may be conducted, at your option, (a) in New York, New York; (b) if You prefer a hearing in or closer to Your hometown area, at a reasonable alternative location You and Gallery identify upon conferring good faith; or (c) by telephone or videoconference. The arbitration shall be conducted in English.
c. Authority of Arbitrator. The arbitration shall be conducted by one neutral arbitrator appointed in accordance with the applicable JAMS rules. Except for disputes over whether the exception in Section a applies, which shall be resolved by the court in which such action has been brought, all other disputes over arbitrability shall be resolved by the arbitrator. The arbitrator will decide the rights and liabilities, if any, of You and Gallery. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum's rules, and this Subscription. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator will follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and Gallery.
d. Waiver of Jury Trial. YOU AND GALLERY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN IN SMALL CLAIMS COURT, AS PERMITTED IN THIS SUBSCRIPTION) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Gallery are instead electing that ALL COVERED CLAIMS AND DISPUTES WILL BE RESOLVED BY ARBITRATION IN ACCORDANCE WITH THIS SUBSCRIPTION, except as specified above in Section 26.a. An arbitrator can award, on an individual basis, the same damages and relief as a court and must follow this Subscription as a court would. However, THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. BOTH YOU AND GALLERY KNOWINGLY WAIVE ANY RIGHTS EITHER OF THE PARTIES MAY HAVE TO A TRIAL BY JURY FOR ANY DISPUTE ARISING OUT OF OR RELATED TO THE SUBSCRIBED ARTWORK OR THIS SUBSCRIPTION.
e. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, CONSOLIDATED, REPRESENTATIVE, OR COLLECTIVE BASIS; ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT; AND CLAIMS OF MORE THAN ONE CUSTOMER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR PERSON. If a decision is issued stating that applicable law precludes enforcement of any of this Section 26's limitations as to a given claim for relief, then the applicable claim must be severed from the arbitration and brought into the state or federal courts in accordance with Section 23 of this Subscription. All other claims will be arbitrated.
f. Other Remedies. The provisions of this Section 26 do not prohibit You or Us from exercising any lawful rights or using other available remedies to preserve, or obtain possession of property
You acknowledge and agree that You have read this Subscription completely, including the dispute resolution and arbitration agreement in Section 26, and understand and agree to its terms.
BY CLICKING ON THE "I AGREE" BUTTON, YOU WILL BE SIGNING THIS SUBSCRIPTION, MEANING YOU AGREE TO ALL OF ITS TERMS AND CONDITION AND ACKNOWLEDGE YOUR RECEIPT OF A COMPLETED COPY OF THIS SUBSCRIPTION.